Appeal by defendant from judgments entered 2 September 2004 by
Judge F. Donald Bridges in Burke County Superior Court. Heard in
the Court of Appeals 18 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Franklin E. Wells, Jr. for defendant-appellant.
Defendant James Harrell Brown appeals from his conviction on
three counts of statutory rape of a person 13, 14, or 15 years old,
two counts of felonious breaking or entering, and one count each of
first degree burglary, statutory sexual offense against a person
13, 14, or 15 years old, and indecent liberties with a child.
Defendant argues primarily on appeal that there was insufficient
evidence to convict him of burglary and breaking or entering
because the child victim consented to his nighttime entries into
her parents' house. Defendant also makes a related argument
pertaining to the jury instructions. Because the State presented
evidence that defendant could not have reasonably believed that thechild victim, a 13-year-old, had authority to consent to
defendant's entry into her parents' home for the purpose of
engaging in sexual intercourse with her and because the trial court
properly instructed the jury on this issue, we find no error.
Although we also hold that defendant's other contentions on appeal
are without merit, we remand this case for the correction of
certain clerical errors detailed below.
The State's evidence tended to show the following. In
September 2003, defendant, age 45, began an Internet correspondence
with the victim, D.N.K., age 13. D.N.K.'s online username, at the
time, was "I'masexygirl." Defendant initiated the correspondence
by sending D.N.K. a message saying: "A sexy girl can make men do
unbelievable things." When defendant told D.N.K. that he was 45
years old, she informed him that he was too old to have a
relationship with her, but that they could still be friends.
Later, she told him that she was 13 years old.
The two continued to correspond over the Internet for about a
month. During the course of their conversations, defendant asked
D.N.K. if she was a virgin, and she replied that she was.
Defendant told her that he wanted to have sex with her and that,
because he was older and more experienced, he knew "how to be
gentle and easy so that you can be fulfilled as a woman and not be
hurt." Defendant told D.N.K. that he wanted to see her, and
encouraged her to sneak out of her parents' house to meet him.
When D.N.K. refused to do so, the two made plans for defendant to
come to D.N.K.'s house on Tuesday, 30 September 2003, between 10:00
and 11:00 p.m. D.N.K. gave defendant her home address and supplied
him with a floor plan of her house. Defendant promised that he
would bring some Cherry Coke mixed with alcohol to help D.N.K.
On the designated evening, defendant arrived at D.N.K.'s house
wearing a camouflage shirt, pants, and hat, with a camouflage net
over his face. As previously arranged, he signaled D.N.K. with a
red penlight through the basement window of her house. When she
saw the light, D.N.K. opened the basement door for defendant.
After defendant entered the house, the two began hugging and
kissing, and D.N.K. invited defendant to go up to her bedroom.
Defendant instructed D.N.K. to go upstairs, close her bedroom door,
turn her bedroom lights off, and open her window. After D.N.K. did
so, defendant climbed through the bedroom window, handed her two
bottles of Cherry Coke mixed with alcohol, and hid in D.N.K.'s
closet. Once D.N.K. was sure her parents had gone to bed,
defendant got into D.N.K.'s bed with her, performed oral sex on
her, and engaged in sexual intercourse. Defendant left the house
around 4:30 a.m. At approximately 11:00 p.m., on 2 October 2003, defendant
again arrived at D.N.K.'s house, signaled her with the penlight,
entered her bedroom by climbing through her window, gave her
alcohol mixed with Coke, hid in her closet until her parents went
to sleep, and then had intercourse with her and performed oral sex
on her. He left before D.N.K. awoke in the morning.
On 8 October 2003, defendant went to a football game at
D.N.K.'s middle school. He took her to a fast food restaurant and
then dropped her off at the school. Later that night, at around
8:00 p.m., defendant went to D.N.K.'s home, signaled her with the
penlight, and entered through her bedroom window. He and D.N.K.
both hid in her bedroom closet, where they had intercourse and then
fell asleep. While they were asleep in the closet, D.N.K.'s mother
entered the bedroom. Although D.N.K. was still asleep, defendant
awakened and quickly pulled his legs and feet into the closet, so
that D.N.K.'s mother did not see him. Later, after D.N.K.'s
parents had gone to sleep, defendant and D.N.K. had intercourse in
her bed, and defendant left at about 4:30 a.m.
The next day, defendant e-mailed D.N.K. and told her that her
mother had almost caught them. He said he wanted to end the
relationship, explaining that he was too old for her, that "he
could spend 20 years in prison for statutory rape if he got
caught," and that "we cannot be sneaking around the next four years
till you are of age." The same day, D.N.K.'s parents learned aboutD.N.K.'s relationship with defendant and called the police. In two
separate statements to the police, defendant admitted that he had
entered D.N.K.'s house three times while her parents were at home
and that he had had sexual intercourse with her.
Following a jury trial, defendant was convicted, with respect
to the events of 30 September 2003, of first degree burglary,
indecent liberties with a child, statutory sexual offense against
a person 13, 14, or 15 years old, and statutory rape of a person
13, 14, or 15 years old. As for the events of 2 and 8 October
2003, he was convicted of two counts of felonious breaking or
entering and two counts of statutory rape of a person 13, 14, or 15
The trial court sentenced defendant to a total of four
consecutive sentences of 240 to 297 months, based on his
convictions for burglary, rape, and sexual offense. He also
received a suspended sentence of 16 to 20 months for his indecent
liberties conviction and suspended sentences of 6 to 8 months for
each of his breaking or entering convictions.
Defendant argues on appeal that the trial court erred in
denying his motions to dismiss for insufficiency of the evidence as
to the burglary and felonious breaking or entering charges. In
ruling on a defendant's motion to dismiss, the trial court must
determine whether the State has presented substantial evidence (1)of each essential element of the offense and (2) of the defendant's
being the perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561
S.E.2d 245, 255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404,
123 S. Ct. 488 (2002). "'Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.'" State v. Matias
, 354 N.C. 549, 552, 556 S.E.2d
269, 270 (2001) (quoting State v. Brown
, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984)). When considering the issue of substantial
evidence in assessing a motion to dismiss, the trial court must
view all of the evidence presented "in the light most favorable to
the State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor." State v.
, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied
515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
"The elements of burglary in the first degree are the breaking
and entering, in the nighttime, into a dwelling house or a room
used as a sleeping apartment, which is actually occupied at the
time of the offense, with the intent to commit a felony therein."
State v. Simpson
, 303 N.C. 439, 449, 279 S.E.2d 542, 548 (1981);
N.C. Gen. Stat. § 14_51 (2005) (defining first degree
burglary). The essential elements of felonious breaking or
entering are "(1) the breaking or entering (2) of any building (3)
with the intent to commit any felony or larceny therein." State v.
, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992); see also
N.C. Gen. Stat. § 14-54(a) (2005) (defining felonious breaking or
entering). Although the offense of burglary includes both a
breaking element and an entering element, Simpson
, 303 N.C. at 449,
279 S.E.2d at 548, the offense of felonious breaking or entering
requires that the State only prove that either
breaking or entering
took place. State v. Myrick
, 306 N.C. 110, 114, 291 S.E.2d 577,
 Defendant first argues that the State presented
insufficient evidence to prove either burglary or felonious
breaking or entering, since D.N.K., a resident of the house,
consented to his entry. Defendant is correct that "[a] person
entering a residence with the good faith belief that he has the
consent of the owner or occupant or his authorized agent is not
chargeable with the offense of breaking and entering." State v.
, 30 N.C. App. 213, 215, 226 S.E.2d 672, 674, disc. review
, 291 N.C. 178, 229 S.E.2d 691 (1976); see also State v.
, 223 N.C. 258, 260, 25 S.E.2d 751, 752 (1943) ("[T]he fact
that the breaking and entry was against the will of the owner [does
not] create guilt as a matter of law. The intent with which the
act was committed is material.").
Our courts have, however, recognized that a child who has a
room in his or her parents' house does not have unlimited authority
to allow entry to visitors. State v. Upchurch
, 332 N.C. 439, 458,
421 S.E.2d 577, 588 (1992). Courts considering consent to entrygiven by a son or daughter have focused on the purpose of the entry
and whether the child had authority to consent to entry for that
purpose. See, e.g.
("[I]t cannot be said that either [the
son] or defendant had any good-faith, reasonable belief that [the
son] had authority to give defendant permission to enter his
parents' home in the middle of the night when [the son] was not
there [for the purpose of murdering the parents]. . . . Any
authority [the son] may have had was exceeded and any implied
consent was invalid from its inception."); Tolley
, 30 N.C. App. at
215, 226 S.E.2d at 674 ("Defendant could not have reasonably
believed that [the son] had authority to permit defendant to enter
his parents' residence for the purpose of stealing valuables which
belonged to his parents . . . ."); see also State v. Thompson
N.C. App. 425, 426_27, 297 S.E.2d 177, 179 (1982) (daughter not
authorized to enter her own parents' home for the purpose of
larceny), appeal dismissed and disc. review denied
, 307 N.C. 582,
299 S.E.2d 650 (1983).
Here, the State presented sufficient evidence to allow a jury
to find that defendant could not have reasonably believed that
D.N.K. had authority to allow him entry to further his purpose of
committing statutory rape. Defendant's covert actions such as
arriving late at night, wearing camouflage, signaling D.N.K. with
a red penlight, taking precautions about turning off lights, and
hiding in D.N.K.'s closet all suggest that he did not believeD.N.K. had full authority to allow him into her parents' house.
Defendant's arguments based on D.N.K.'s consent to his entry thus
do not support the granting of his motion to dismiss.
 Defendant argues, in the alternative, that he did not
"break" into D.N.K.'s parents' house on 30 September 2003 because
he entered through the open basement door and then re-entered
through D.N.K.'s open bedroom window. Therefore, he contends, the
trial court should have dismissed the first degree burglary charge,
since burglary requires both breaking and entering.
Our Supreme Court has held:
A constructive breaking in the law of burglary
occurs, quite simply, "[w]hen an opening is
made not by the defendant but by . . . some
other person and, under the circumstances, the
law regards the defendant as the author
thereof. . . ." 3 C. Torcia ed. Wharton's
Criminal Law § 330 at 200 (14th ed. 1980). . .
. It is enough if that person is acting at
the direction, express or implied, of
defendant, or is acting in concert with
defendant, or both.
State v. Smith
, 311 N.C. 145, 149-50, 316 S.E.2d 75, 78 (1984).
There is a constructive breaking, for example, "'[w]hen entrance is
obtained by procuring the servants or some inmate to remove the
at 148, 316 S.E.2d at 77 (quoting State v. Henry
31 N.C. (9 Ired.) 463, 467 (1849)).
In the present case, we hold that a reasonable jury could find
that defendant committed a constructive breaking. D.N.K., a minor
"inmate" of the house, opened the basement door to defendant asthey had pre-arranged, and then, following his instructions, opened
her bedroom window for him. Defendant committed a constructive
breaking since the window and door were only ajar because defendant
induced D.N.K. to open them, and, as we have discussed, defendant's
behavior showed that he knew D.N.K. lacked authority to consent to
defendant's entry. Since the State presented substantial evidence
of a constructive breaking, the trial court properly denied
defendant's motion to dismiss the burglary charge.
 Defendant next argues that the court improperly instructed
the jury regarding consent as it relates to burglary and breaking
or entering. During deliberations, the jury submitted a question
asking the court to "[d]efine ownership and tenant" as those terms
relate to consent. The following colloquy then occurred:
THE COURT: . . . It sounds to me as if
the question you're asking is whether or not
an occupant of the dwelling would be an owner
or tenant for purposes of these instructions.
THE FOREPERSON: Yes, sir.
THE COURT: That is, a person having
authority to consent to the entry by another
person. And in that regard, I instruct you
that occupants in the dwelling do not always
have authority to consent to entry by others.
Although certainly any occupant of the
dwelling may under certain circumstances have
consent _ or have authority to consent to the
entry of the dwelling by others.
Although one may consent to entry by
another into an occupied dwelling, that
consent is not a valid consent unless therewas authority to grant that consent. It is no
defense to a burglary charge if a defendant is
given consent to enter by one not having
authority to do so.
Now, in determining whether or not this
defendant had consent of an owner or tenant to
enter into the home of [D.N.K.'s father], if
you find that he did enter into the home, it
would be up to you, as jurors, to determine,
based on all of the circumstances as they
existed at the time, whether or not that
person had authority to grant that consent.
For example, you should consider the time
of entry, the purpose of the entry, and the
reasonableness of the belief, if any, of the
defendant that any person consenting to his
entry had authority to grant that consent
(Emphasis added.) Defendant argues that the trial judge's answer
to the question focused on whether the person allowing entry
actually had authority to consent, without properly taking into
account the importance of defendant's perception of whether that
person had such authority.
Our standard of review in cases involving jury instructions is
This Court reviews [a trial court's]
instructions [to the jury] contextually and in
[their] entirety. The charge will be held to
be sufficient if it presents the law of the
case in such manner as to leave no reasonable
cause to believe the jury was misled or
misinformed . . . . Under such a standard of
review, it is not enough for the appealing
party to show that error occurred in the jury
instructions; rather, it must be demonstrated
that such error was likely, in light of the
entire charge, to mislead the jury.
State v. Blizzard
, 169 N.C. App. 285, 296_97, 610 S.E.2d 245, 253
(2005) (internal quotation marks omitted).
Here, the last sentence of the court's answer to the jury's
question focuses the jury's attention on the defendant's reasonable
belief as to D.N.K.'s authority to consent to his entry. Since
jury instructions must be considered as a whole and not in isolated
fragments, State v. Anderson
, 350 N.C. 152, 179, 513 S.E.2d 296,
312, cert. denied
, 528 U.S. 973, 145 L. Ed. 2d 326, 120 S. Ct. 417
(1999), we can find no error in the judge's response to the jury's
question. See also State v. Humphrey
, 13 N.C. App. 138, 142, 184
S.E.2d 902, 904 (1971) (jury charge "must be considered as a whole,
. . . with the presumption that the jury did not overlook any
portion of it and if, when so construed, it presents the law fairly
and correctly, there is no ground for reversal").
Defendant also contends that the court's answer did not
contain any reference to the State's burden of proving beyond a
reasonable doubt that defendant could not have believed D.N.K. had
authority to consent to his entry into her home. As the Court
emphasized the State's burden of proof elsewhere in the jury
instructions, the failure to re-emphasize that burden here was not
error. See State v. Morgan
, 359 N.C. 131, 163_64, 604 S.E.2d 886,
906 (2004) (holding that a challenged jury instruction did not
impermissibly shift the burden of proof when the trial court
elsewhere instructed the jury that the State must prove its casebeyond a reasonable doubt), cert. denied
, __ U.S. __, 163 L. Ed. 2d
79, 126 S. Ct. 47 (2005).
 Upon defendant's arrest, the State seized his computers
and then introduced into evidence child pornography gathered from
the hard drives, as well as extensive e-mail correspondence between
defendant and D.N.K. Defendant argues that the admission of these
exhibits was improper because the State did not properly establish
a chain of custody for the computers and their contents between the
time the computers were seized from defendant's possession and the
time of trial.
With respect to physical objects such as defendant's
computers, the object offered into evidence "must be identified as
being the same object involved in the incident and it must be shown
that the object has undergone no material change." State v.
, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984).
Nevertheless, "[a] detailed chain of custody need be established
only when  the evidence offered is not readily identifiable or
is susceptible to alteration and  there is reason to believe
that it may have been altered." Id.
at 389, 317 S.E.2d at 392.
"[A]ny weak links in a chain of custody relate only to the weight
to be given evidence and not to its admissibility." Id.
Here, defendant argues that the computers' contents were
"susceptible to alteration" because multiple police officers hadaccess to the computers while they were being seized and,
afterwards, the hardware was not stored in a secure location while
defendant's case was pending. Defendant has not, however,
identified on appeal any "reason to believe that [the computers'
contents] may have been altered." Id.
setting forth a detailed chain of custody was not necessary in
order for the trial court to properly admit the computers. Once
the computers and their contents were admitted, any remaining
doubts surrounding their chain of custody were to be resolved by
 Defendant also objects separately under N.C.R. Evid. 402,
403, and 404(b) to the trial court's admission of photographs
removed from his computer, showing children engaged in sexual acts
or posed in sexual positions. We need not reach the merits of
these issues because, even if we assume that the trial court erred
in admitting the photographs, defendant has failed to demonstrate
prejudice warranting a new trial.
In order to be entitled to a new trial, defendant must show
that there is a reasonable possibility that, had the evidence not
been admitted, a different result would have been reached at his
N.C. Gen. Stat. § 15A-1443(a) (2005) (defining
prejudicial error and placing the burden on defendant to make a
showing of such error). Here, defendant twice confessed to the
police that he had engaged in sexual intercourse with D.N.K. on
three occasions in her parents' house. Moreover, the e-mail
correspondence and defendant's appearance at D.N.K.'s middle school
leave little doubt that defendant knew D.N.K.'s age. Finally, hemade great efforts to conceal himself from D.N.K.'s parents and
told D.N.K. that if he was caught with her, he could spend 20 years
in jail. We can perceive no possibility that the jury would have
acquitted defendant absent the admission of the photographs.
 Defendant's final argument pertains to the trial court's
failure to find any mitigating factors during defendant's
sentencing hearing. Defendant was sentenced in the presumptive
range and, therefore, has no statutory right to appeal his
N.C. Gen. Stat. § 15A-1444(a1) (2005); see also
State v. Brown
, 146 N.C. App. 590, 593-94, 553 S.E.2d 428, 430
(2001), appeal dismissed and disc. review denied
, 356 N.C. 306, 570
S.E.2d 734 (2002). Since defendant has not filed a petition for
writ of certiorari seeking review of this issue, we do not consider
We note, however, that although the trial court must consider
evidence of mitigating factors, it is within the court's discretion
whether to depart from the presumptive range. See
N.C. Gen. Stat.
§ 15A-1340.16(a) (2005). See also Brown
, 146 N.C. App. at 594, 553
S.E.2d at 431 (finding no error when court imposed presumptive
range sentence despite defendant's undisputed evidence in
mitigation); State v. Chavis
, 141 N.C. App. 553, 568, 540 S.E.2d
404, 415 (2000) (same). State v. Allen
, 359 N.C. 425, 615 S.E.2d
256 (2005) does not alter that analysis. See id.
at 439, 615
S.E.2d at 266 ("Those portions of N.C.G.S. § 15A-1340.16 which
govern a sentencing judge's finding of mitigating factors . . . are
not implicated by Blakely [v. Washington
, 542 U.S. 296, 159 L. Ed.
2d 403, 124 S. Ct. 2531 (2004)] and remain unaffected by ourdecision in this case."). Defendant cites the case of State v.
, 167 N.C. App. 110, 605 S.E.2d 647 (2004), appeal dismissed
and disc. review denied
, 359 N.C. 642, 614 S.E.2d 921 (2005) for
the proposition that the trial court must find mitigating factors
if a preponderance of the evidence supports them. This principle
applies, however, only when the trial court imposes a sentence
outside the presumptive range. State v. Knott
, 164 N.C. App. 212,
217, 595 S.E.2d 172, 176 (2004).
 We conclude our consideration of defendant's case by
noting a series of clerical errors in the trial court's judgments
imposing sentence. The jury verdicts indicate that defendant was
convicted of indecent liberties, statutory rape, burglary, and
sexual offense for the events of 30 September 2003. The judgments,
however, list the offense date for these crimes as 2 October 2003.
With respect to 2 October 2003, the jury convicted defendant of
felonious breaking or entering and statutory rape, but the relevant
judgments list the offense date for those crimes as 30 September
2003. The verdicts and judgments are correctly matched for the
events of 8 October 2003. Because of the discrepancy between the
verdicts and the judgments, we remand this case to the Burke County
Superior Court for the correction of this apparent clerical error.
No prejudicial error; remanded with instructions.
Judges WYNN and McGEE concur.
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